HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE

Transcription

1 S. HRG THE OFFICE OF PROFESSIONAL RESPONSIBILITY INVESTIGATION INTO THE OFFICE OF LEGAL COUNSEL MEMORANDA HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION FEBRUARY 26, 2010 Serial No. J Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE PDF WASHINGTON : 2011 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) ; DC area (202) Fax: (202) Mail: Stop IDCC, Washington, DC VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

2 HERB KOHL, Wisconsin DIANNE FEINSTEIN, California RUSSELL D. FEINGOLD, Wisconsin CHARLES E. SCHUMER, New York RICHARD J. DURBIN, Illinois BENJAMIN L. CARDIN, Maryland SHELDON WHITEHOUSE, Rhode Island AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware ARLEN SPECTER, Pennsylvania AL FRANKEN, Minnesota COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman JEFF SESSIONS, Alabama ORRIN G. HATCH, Utah CHARLES E. GRASSLEY, Iowa JON KYL, Arizona LINDSEY GRAHAM, South Carolina JOHN CORNYN, Texas TOM COBURN, Oklahoma BRUCE A. COHEN, Chief Counsel and Staff Director MATT MINER, Republican Chief Counsel (II) VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

3 C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas... 9 Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois... 7 prepared statement Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement and attachments Feinstein, Hon. Dianne, a U.S. Senator from the State of California, prepared statement Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont... 1 prepared statement New York Times: February 25, 2010, editorial February 12, 2010, editorial Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama... 4 Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island, prepared statement and attachments WITNESSES Grindler, Gary G., Acting Deputy Attorney General, U.S. Department of Justice, Washington, DC QUESTIONS AND ANSWERS Responses of Gary G. Grindler to questions submitted by Senators Leahy and Whitehouse SUBMISSIONS FOR THE RECORD Attorney Generals, Department of Justice, Washington, DC, joint letter Citizens for Responsibility and Ethics in Washington (CREW), Melanie Sloan, Executive Director, Washington, DC, letter Frisch, Michael S., Washington, DC, statement Government Accountability Project (G.A.P.), Jesselyn A. Radack, Homeland Security Director, and Kathleen McClellan, Homeland Security Counsel, Washington, DC, joint statement and attachment (III) VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

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5 THE OFFICE OF PROFESSIONAL RESPONSI- BILITY INVESTIGATION INTO THE OFFICE OF LEGAL COUNSEL MEMORANDA FRIDAY, FEBRUARY 26, 2010 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. The Committee met, pursuant to notice, at 10:12 a.m., in room SD 226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Durbin, Sessions, and Cornyn. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman LEAHY. Good morning, and I apologize for the delay. I understand the local newscast was on this morning talking about the major power outages in parts of Northern Virginia. When I looked out the window where I live out there, I could see the satellite truck broadcasting. Unfortunately, I could not watch it because I was part of the power outage, which is interesting well, I have a great deal of sympathy for the power companies. The winds are so high. I would not want for my convenience or anybody else s convenience that they risk their lives going up in their lifts to hook the power up. We can go without that for a while. Senator SESSIONS. Well, you missed that good CNN show this morning on you and Senator Lugar looking so fabulous and getting along in a bipartisan way. What a puff piece. [Laughter.] Senator SESSIONS. I mean, goodness, how much did that cost you? Was that a paid ad? Chairman LEAHY. Dick Lugar and I have been best of friends for over 30 years. Senator SESSIONS. It was nice. Chairman LEAHY. We actually filmed it in here, but he and I started out as the two most junior members of the Senate Agriculture Committee, and this is how things have changed. We were sitting at a long table, and we were down way at the end. We were almost in the anteroom as though they did not want us even in there, he on the Republican side, me on the Democratic side. And the Chairman at that time was a man named Herman Talmadge from Georgia, and Herman Talmadge and Jim Eastland of Mississippi would sit up at the part of the table smoking big Cuban cigars. They were very anti-communist. They were burning Cas- (1) VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

6 2 tro s crops. But they would be puffing away, and they would kind of mutter, an amendment, a legal, technical amendment, usually about this thick, and I had the temerity once, when Dick and I were trying to figure out what was in the amendment, and I raise my hand, and I said, Mr. Chairman, could you tell me what was in that amendment that we just passed? And they both looked down there. You could see them muttering, like Who the heck are these guys? He takes his gavel, and he says, We are adjourned. [Laughter.] Chairman LEAHY. On the way out, Hubert Humphrey mentioned to us now we understand what was in the amendment. We are much nicer. The Chairmen now just get run over by everybody else on the Committee, and it is a different world. But thank you for the compliment. Senator SESSIONS. It was a good show. Chairman LEAHY. As you know, Senator Lugar is one of the alltime gentlemen of the Senate, and I like working with you, Senator Sessions, Senator Durbin, and others. The nicest thing about the Senate is working with all of you. It has now been more than a year now, on a more serious subject, since I first proposed the establishment of an independent, nonpartisan commission to engage in a comprehensive inquiry to determine how the U.S. Government came to authorize torture. And I had asked for such a nonpartisan commission a year ago. I wanted to take it out of politics, have been something like the 9/11 Commission look into it. Without support, we were unable to get that, and I think that is unfortunate. But since that time, we have seen more and more evidence of what went wrong. We have seen the release of more Office of Legal Counsel memoranda documenting the authorization of brutal practices, an Inspectors General report that calls into question the guidance given by the Department of Justice, a CIA Inspector General report that reveals even those lax standards were violated during interrogations, and last week, finally, the release of the results of the Office of Professional Responsibility inquiry into the legal advice given by those at the Office of Legal Counsel. I go down through that chronology because I think all these narrower reports point to why we need a comprehensive review. None of them can state definitively why these practices veered so far from American values. The OPR investigation was limited to determining whether or not legal profession rules were violated. Well, that is the business of bar associations. Let bar associations worry about that. In my view, it is the wrong focus. These legal memoranda were only a part of the problem. They were intended to provide a golden shield to commit torture and get away with it. As is now evident, even though the OPR investigation has consumed years, it is not complete. The investigators were denied access to key witnesses and documents. Did they interview David Addington, the counsel to Vice President Cheney? No. But yet, according to Alberto Gonzales and Jack Goldsmith, he was a key figure. Mr. Gonzales, former Attorney General, called him an active player in the drafting of these memoranda. Did they have the full record of John Yoo s communications with the White House? No. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

7 3 There are so many gaps in this report that, in fact, my first question to the Justice Department witness today is going to be, Where are Mr. Yoo s s, which, by law by law are required by law to be maintained? The fundamental question here is not whether these were shoddy legal memos. They were shoddy legal memos. Everybody knows that. The legal work of Yoo and Bybee and Steven Bradbury, the acting head of OLC who reaffirmed the CIA interrogation program, was flawed. It failed to cite significant case law; it twisted the plain meaning of statutes. The legal memoranda were designed to achieve an end. That is not what the Office of Legal Counsel should do, nor has ever done in any other administration, Republican or Democratic. These administration lawyers of the last administration, frankly, lost their way. In my view, President Bush was actually disserved by the lawyers who worked for him. These lawyers told the administration not what President Bush should have heard, but rather what Vice President Cheney wanted to hear. Without question, our Government institutions were undermined. The rule of law was disrespected. The American people were harmed and I think put at far greater security risk. The torture of individuals was not just a violation of our laws and treaties; it handed al Qaeda a valuable propaganda tool to gain new recruits. Instead of making us safer, it made us less safe. Focusing on whether these lawyers failed to meet legal ethical standards misses the fundamental point. The real concern is that lawyers who were supposed to be giving independent advice regarding the rule of law and what it prohibits were instead focused on excusing what the Bush-Cheney administration wanted to do. These lawyers abandoned their independent responsibilities to become apologists. The role of the White House in the politicization of the OLC and in ensuring that these opinions delivered the legal immunity they were looking for has yet to be fully explored. My sense is that such a review would reveal the same untoward and corrupting influence we found when we investigated the purging of United States Attorneys for blatant political purposes. As disturbing as the findings and evidence from this limited investigation are, they are not the final arbiter. I do believe we need a true accounting and a comprehensive, nonpartisan review. For the country to recover from this era, we should know what went wrong so that it will not happen again under this administration or the next administration or the administration after that. Unfortunately, the Obama administration s attempts to repair this office and ensure that its lawyers are providing the Government with principled advice have been hamstrung by those who are continuing to delay appointment of the President s nominee to head the OLC. Now, I have been conducting oversight of these issues for years. I was deeply concerned this country was treating people in our custody in a way that went against our laws and our values. That is why I did not hesitate to issue subpoenas for these memoranda when the last administration refused to cooperate, and the release VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

8 4 of those memos revealed how they were justifying torture. I am going to continue that aggressive oversight. I want to make sure that no future administration I do not care whether it is of my party or the other party makes such mistakes. Senator Sessions. STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA Senator SESSIONS. Mr. Chairman, for the last several years, this Committee Chairman LEAHY. Excuse me. Could I just mention that Senator Feinstein intended to be here, was looking forward to being here, in fact, had changed her plans to fly back to California to be here. She is not feeling well this morning, and that is why she is not here. She has been a very, very valuable assistant in this. I apologize. Senator SESSIONS. For the last several years, the Judiciary Committee and the Armed Services Committee, of which I have been a part, as well as the Intelligence Committee, have spent an extraordinary amount of time debating and investigating legal and factual policy questions surrounding how we conduct the war with al Qaeda and other organizations, and second-guessing good people who made tough decisions at difficult times. So I think we ought to put this in context. Today we are discussing memos that were written in 2002, not long after the 9/11 attack, when we did not know the extent of the infiltration into this country by cells that may have been planning further attacks. The memorandums that were then written were repealed in 2004, yet here we are in 2010 in large part because of the missteps and delays by the Department of Justice s Office of Professional Responsibility holding a hearing today to go through the issue one more time. My big overall concern, Mr. Chairman, as I have expressed before and in the Armed Services Committee and on the floor of the Senate, is that, yes, there were three instances of waterboarding that have received severe criticism. But I would say that the nature, extent, and the rhetoric coming out of our committees has created an impression worldwide that there has been systematic torture of people in prisons in the United States, that we violated laws consistently, that the President had a policy to violate the law, and these hearings I think have made clear that that is really not correct. We do not need to, for heaven s sakes, tell the world our actions were worse than they are driven, what, by some political opposition to the war? Every time you are in a conflict, the anti-war groups always find something to complain about because war is a very bitter, tough, dangerous life-and-death matter. People are killed. Sometimes innocent people are killed. That is just the nature of it, no matter how hard you work against it. The people who desire to undermine a policy decided on by both parties and both Houses of Congress along with the President use these kind of discrete errors and events and missteps as a basis to attack the policy, and we have got to be aware of that, I think, as we go forward. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

9 5 In the aftermath of September 11th, lawyers in the Department of Justice and our National security professionals have one unifying goal: preventing another attack on this country. The President said, I am going to use every power I have to defend this country. He meant that, and the American people said, Yes, we agree with that. So the question is: What were the reaches of the President s power? How much power did he have? Lawyers are in deep disagreement about that. So these lawyers job was serious. The pressures were enormous, to determine where the legal lines should be drawn and how far could they be pushed. Were they crossing the lines of propriety or were they just near the lines of propriety? That is what the President asked them to do. I think that is what the American people wanted, to use all the power that we could use. I do not think the American people wanted us to violate the law. In his important book The Terror Presidency, Jack Goldsmith, who disagreed with some of these policies, discussed openly and honestly what he called the national security lawyer s dilemma, which was borne out the conflicting commands and pressures that they have upon them. And this is what he said: Stay within the confines of the law, even when the law is maddeningly vague, or you will be investigated and severely punished. But be proactive and aggressive and imaginative. Push the law to its limit. Do not be cautious and prevent another attack at all costs, or you will be investigated and punished. Times have changed. Jack Goldsmith s discussion what could be termed a prediction now of retroactive discipline and judgments in hindsight have become a reality in the investigation undertaken by the Office of Professional Responsibility in this matter, and I fear we are now in what Mr. Goldsmith called a cycle of timidity. Whatever the reason, the Obama administration has taken a dangerous turn away from the lessons I think we learned after 9/11. We have discussed some of those errors at some length here. In 2010, we have an administration that not only repealed tough and effective interrogation techniques that are lawful, but announced to the terrorists around the world that we have done so in favor of a far more limited Army Field Manual. We have an administration that gave Miranda warnings and a lawyer to a terrorist directly coming to America with an al Qaeda bomb to attack this country, who tried to blow up an airplane on Christmas Day, rather than questioning him aggressively for intelligence purposes so that we could learn all that we could as quickly as we could about al Qaeda and its new expanded presence in Yemen. We have an administration that insists on giving Miranda warnings to terrorists caught during wartime on the battlefields in Iraq and Afghanistan. We have an administration that has announced that it intends to hold an Article III common criminal trial for Khalid Sheikh Mohammed and other terrorists that are being held at Guantanamo Bay rather than prosecuting them, as the Attorney General has admitted is quite legal, through military commissions, which are constitutionally appropriate and have a long history in this country and in other countries. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

10 6 These policy decisions are troubling and, in my view, dangerous. They have been made for reasons inexplicable to me, perhaps because the administration is trying to assuage the pressures from the left and maybe because some of the chief critics and anti-war activists who now populate the Department of Justice are involved in making current legal policy. I am afraid that investigations like the one OPR conducted against Jay Bybee and John Yoo have sent a devastating message to those who might serve as national security lawyers. In the immediate aftermath of September 11th, under pressure so great that Attorney General Mukasey and Deputy Attorney General Mark Filip noted that they would wish it on no American ever and certainly no member of the Department of Justice, John Yoo and Jay Bybee crafted two legal memoranda on the subject of enhanced interrogation techniques. One of those memos was later leaked to the press, and Members of Congress called for an investigation of the circumstances surrounding the drafting of this memo. After years, two drafts and one final report later, the Office of Professional Responsibility concluded, apparently without sufficient legal or factual basis, that Mr. Bybee and Mr. Yoo had violated legal ethics rules and deserved to be referred to sanctions by State bar authorities. The D.C. Bar Association ethics rules and standards would be imposed on people with the job of providing guidance concerning some of the most dangerous work this country was engaged in. I think there is a danger there. There is much that can be discussed about OPR s work in this matter, most of it not flattering. They dropped their first version of the report on Attorney General Mukasey on December 23, 2008, at the end of the Bush administration, and with little time for the Attorney General to respond. The first report was full of gaping holes, shoddy legal analysis, and something even worse a clear desire to punish, it seems, Mr. Yoo and Mr. Bybee, even if the facts did not support it. Later versions of that OPR report attempted to change the legal standard to an unprecedented heightened standard that OPR contended applied only to Mr. Yoo and Mr. Bybee, the unfair equivalent of moving the goalposts in the middle of the game. And someone, by press accounts, perhaps OPR lawyers themselves, repeatedly leaked the draft reports and conclusions to the media in what would seem to be a transparent attempt to embarrass Mr. Yoo and Mr. Bybee and gain public support for their conclusions. So I think that is unacceptable, and I am going to want to know whether the Department is investigating those leaks to determine whether they came from within the Department of Justice. Fortunately in this matter, cooler and wiser heads have prevailed. The senior career official at the Department, David Margolis, who has been held in great respect for many, many years, rejected OPR s efforts. Mr. Margolis, who has conducted the final review of every discipline matter of this sort in the last 17 years in the Department of Justice, drafted a 69-page opinion that lays out in great detail the serious problems with OPR s analysis. The Washington Post has called his opinion courageous and correct. And I agree. So where do we go from here? How does OPR rebuild its reputation and credibility? Can it even do so? And, most importantly, how VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

11 7 can we undo the damage that misguided investigations of this sort have on the willingness of national security lawyers to take on tough questions of life and death and provide candid legal advice without fear that their reputations and even their livelihoods and careers will be threatened if they give advice that falls out of political favor in years to come? So I hope we will be able to talk about this, Mr. Chairman. I know it is important to you, and I know a lot of my colleagues feel like the Government went too far in some of the things that it did. That has all been made clear. It has all been made public. But I do think we have got to move past this. We are at war today. This matter was confronted, and corrections and changes were made during President Bush s administration. And I believe that we have a sound legal basis to protect our country, but I am troubled, frankly, that the President is not using the powers that he clearly has. Thank you, Mr. Chairman. Chairman LEAHY. Of course, we want to make sure that no President uses powers that he does not have. I will put into the record a statement by Senator Feingold, and I would note that Senator Whitehouse, who had been eager to have this hearing, had to go home to Rhode Island for the funeral of a young marine from Rhode Island who was killed in Afghanistan. Each one of us has gone to such funerals and can well understand why he must be there. [The prepared statement of Senator Feingold appears as a submission for the record.] Chairman LEAHY. Senator Durbin, I believe you wanted to say something, and Senator Cornyn did. Then whether others come or not, after the two of you we are going to go to Mr. Grindler. STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS Senator DURBIN. Thank you very much, Mr. Chairman, and thank you for this hearing. It is worth reminding ourselves why we are here today. Mr. Bybee and Mr. Yoo authored the infamous torture memo which redefined torture as limited only to abuse that causes pain equivalent to organ failure or death. They concluded that the President of the United States has the authority to ignore the law that makes torture a crime. That memo provided legal cover for the Bush administration to authorize waterboarding, a torture technique that our country has historically repudiated as torture and, in fact, prosecuted as a war crime. The late historian Arthur Schlesinger, Jr., said this about the previous administration s legal defense of torture, and I quote: No position taken has done more damage to the American reputation in the world ever. The Senate considered this issue. The author of the legislation on this issue is the one man in the Senate uniquely qualified to speak to it: John McCain, prisoner of war in Vietnam, himself a victim of torture. John McCain offered an amendment to say that torture is unacceptable and will not be part of the American response to the war on terror. The vote on that legislation, The Senator VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

12 8 from Alabama was one of those who voted against Senator McCain s torture amendment. He clearly has his own views. He is entitled to those views. But we are entitled to ask whether or not torture has now become an acceptable means of interrogation. I believe it is clear from the Senate action, from the repudiation of the Bybee memo, and from this new administration s clear statements, that torture is not part of American policy. Why? Because the young men and women that we send into combat, into war, could themselves become prisoners. Would we stand idly by and accept it if they were tortured as prisoners? Of course not. That is what is behind this policy, that the United States stands up for conduct in the world that we not only defend but conduct which we would vigorously prosecute if used against our own. I listened to the statements made by the Senator from Alabama, a reference to what he called the cycle of timidity in this administration, and his claim that we have forgotten the lessons we should have learned after 9/11. He uses as evidence of this the decision to give a Miranda warning to an accused terrorist. The suggestion is that this is a new Obama administration policy. The fact is it is not. Under the Bush administration, policies were adopted for the FBI that, I quote, Within the United States, Miranda warnings are required to be given prior to custodial interviews. A clear and unequivocal statement of policy from the previous administration. What has this done? What have Miranda warnings resulted in? They have resulted in the prosecution of some of the worst terrorists threatening the United States. In this case of Abdulmutallab, it is true that after a period of time he was given Miranda warnings. But then what happened? His family came to the United States and urged him to cooperate and tell more to our Government, and he did. Would he have done that if he had been a victim of waterboarding and torture? I doubt it. But his family knew that he was in our legal system, they clearly respected that legal system, and they urged him to cooperate within that system. And for those who argue that our courts and our criminal system cannot handle terrorism, let me tell you how wrong they are. They are wrong by a score of 195 to 3. One hundred ninety-five terrorists have been successfully prosecuted and convicted in the courts of America since 9/11. One hundred and ninety-five. How many have been successfully prosecuted in military commissions? Three. Some of the most outrageous terrorists engaged in acts that threaten our Nation are now serving life sentences in super-max prisons because they were brought to the courts of our land. To argue now that going through the ordinary constitutional process, subjecting them to prosecution and conviction in our courts, will not keep us safe runs completely counter to our experience and the evidence. Let me say a word about this particular hearing. On February 5, 2008, more than 2 years ago, Senator Sheldon Whitehouse and I asked Attorney General Mukasey to investigate whether the Bush administration s use of waterboarding violated any laws. He refused. Since then, for the past 2 years, Senator Whitehouse and I have pressed for this Office of Professional Responsibility report to VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

13 9 be completed and made public so the American people can judge for themselves. Now it has seen the light of day. I heard high praise for David Margolis here and his role in this. Some claim that he has vindicated Mr. Yoo and Mr. Bybee. Far from it. Let me read an exact quote from Mr. Margolis: I fear that John Yoo s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.... My decision not to adopt OPR s misconduct findings should not be misread as an endorsement of the subject s efforts. High praise for Mr. Margolis, but candor from him about these two individuals. In the end, what have we learned? We have learned that even when America is fearful and concerned about terrorism, we should never, ever forget our basic values. The time will come when those who do have to answer for it. If we stand true to our values and to our history as a Nation, we will be stronger, and we will be respected in the world. I am glad that this report has finally seen the light of day, and I yield the floor. Chairman LEAHY. Thank you. We will hear from Senator Cornyn, and then we will go to Mr. Grindler. STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator CORNYN. Thank you very much, Mr. Chairman. Welcome, Mr. Grindler. Mr. Chairman, I feel compelled to attend this hearing because I think that the Department s decision in this matter should once and for all put to rest any notion that Jay Bybee, John Yoo, and their associates deserve anything other than the thanks of a grateful Nation for their service. For too long, men and women who have dedicated their lives to protecting our country in the wake of 9/11 have been slandered, harassed, and threatened with professional sanctions and even criminal prosecution. Whether we are talking about Justice Department attorneys or CIA field agents, these men and women have sacrificed more than we can comprehend to keep the American people safe from another terrorist attack. Of course, last week, after an investigation that spanned years years Judge Bybee and Professor Yoo have been cleared of any professional misconduct. Regrettably, a criminal investigation ordered by the Attorney General is still underway into the CIA interrogators who relied in good faith on this legal advice. This criminal investigation I believe is likewise unnecessary. It is unnecessary because Federal prosecutors in the Eastern District of Virginia have already reviewed an exhaustive number of cases referred by the CIA s Inspector General and military criminal investigators. Think about that for a moment. The Attorney General has ordered a criminal investigation into interrogations conducted within parameters of legal advice provided by the Justice Department, legal advice that, regardless of one s policy preferences, has been judged by career officials in this Justice Department to have been VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

14 10 given in good faith. The President and the Attorney General should bring the investigation of these CIA personnel who relied in good faith on this legal advice to a close immediately. But we are here, of course, to discuss the Office of Legal Counsel memos. Despite the Department s decision holding that Judge Bybee and Professor Yoo committed no professional misconduct, some on the far left continue to call on the Attorney General to prosecute them for rendering good-faith legal advice. To be sure, the legal advice offered by the OLC attorneys addressed difficult and novel and close questions surrounding the fine line where aggressive interrogation becomes unlawful torture. But in a democracy committed to the rule of law, we must resist the temptation to criminalize policy differences and good-faith differences on legal matters. Prosecuting the former administration s lawyers might be popular with some of the President s most left-wing supporters, but I am confident that such prosecutions would threaten the professional integrity of Government lawyers, the country s ability to gather intelligence and fight the war on terrorism, and the rule of law itself. Let me just provide some context which I think the Margolis memo took into account, which I think is important and which we have forgotten, I think, too many of us have forgotten these many years after September 11, The lawyers who offered their legal advice on the CIA s enhanced interrogation techniques were working at an extraordinary time in our Nation s history. 9/11 was less than a year in the past, and reliable intelligence indicated that al Qaeda was planning follow-on attacks. The CIA had several top al Qaeda agents in custody, and these terrorists revealed some useful information, but many of them had simply stopped talking. CIA interrogators were certain that these al Qaeda agents had additional information about plans to attack America and our interests overseas. Of course, I recall the tremendous bipartisan pressure there was on our intelligence community to increase its counterterrorism efforts to gather actionable intelligence and prevent the next terrorist attack. The House and Senate Intelligence Committees have concluded that the intelligence community did not demonstrate sufficient initiative in coming to grips with new transnational threats in the days before 9/11. So the CIA wanted to know what it could legally do in order to demonstrate sufficient initiative in coming to grips with new transnational threats just what Congress indicated they wanted. So they wanted to know if they could legally use interrogation techniques that our own military uses in survival, evasion, resistance, and escape, or SERE training, including waterboarding. But the interrogators did not simply start using these techniques. Instead, they did the right thing, and they asked their superiors, they asked the lawyers at the Office of Legal Counsel for advice about the advisability and legality of these techniques. So the issue was raised and debated by lawyers within the CIA along with those in the White House and the Department of Justice s Office of Legal Counsel. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

15 11 I think you cannot read these memos without seeing that there is an attempt to do what every lawyer does when presented with a novel and difficult question, and that is to do the research to try to offer opinions on both sides, and then ultimately you have to reach a conclusion. And I think they earnestly wrestled with these difficult legal questions. They called the question regarding the legality of waterboarding substantial and difficult, and it is no doubt a difficult question, one they sought to resolve to the best of their ability, as the Department concluded last week. Today s hearing comes after the Department s decision that has found no grounds for charging these two men with professional misconduct. But from listening to some of the responses to the conclusion of Mr. Margolis, you might think they had been found guilty of professional misconduct, not exonerated of professional misconduct. Perhaps the OPR investigation itself should be inquired about. I hope the witness, Mr. Chairman, can talk to us about the Office of Professional Responsibility s failure to follow its own standards. I realize the witness was not there then, but I would be interested to know what the Department of Justice intends to do to correct what Mr. Margolis said was a failure of OPR to follow its own standards. And Mr. Margolis also pointed to OPR s failure to cite a violation of a known standard of conduct, risking the likelihood, which apparently occurred here, that there would be a subjective standard applied rather than one that lawyers could discern and find out and CIA interrogators could follow. And then, of course, there was, as I mentioned, OPR s failure to take into account the circumstances that existed in the aftermath of September the 11th, when these individuals charged with protecting the American people were in good faith trying to prevent the death of other innocents, such as we saw at the Pentagon and we saw at the World Trade Center on September the 11th. And then Senator Sessions mentioned this the leaks to the media which have done irreparable damage to the reputations of these two men who have now been found not guilty of professional misconduct is just shameful, and I hope we get to the bottom of it. Thank you. Chairman LEAHY. Our witness this morning, Gary Grindler, comes to us from the Department of Justice. He is currently the Acting Deputy Attorney General. He previously served in the Department in a number of roles, including Principal Associate Deputy Attorney General, Counselor to the Attorney General, Deputy Assistant Attorney General in the Civil Division, and Assistant U.S. Attorney. Most recently, he was partner in King and Spalding s Washington, D.C., office, focused on white-collar criminal defense, internal corporate investigations, and complex civil litigation. He is seen by many as a lawyer s lawyer. Mr. Grindler, did you wish to make some kind of an opening statement? Then we are going to ask questions. Is your microphone on? VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

16 12 STATEMENT OF GARY G. GRINDLER, ACTING DEPUTY ATTOR- NEY GENERAL, U.S. DEPARTMENT OF JUSTICE, WASH- INGTON, DC. Mr. GRINDLER. Yes, Chairman Leahy, if I could just make a few brief remarks. Good morning, Chairman Leahy, Ranking Member Sessions, and other members of the Committee. I want to thank you for the opportunity to appear before you today, and I am pleased to respond to your interest in the Department s decisions about the Office of Professional Responsibility s review of work by former attorneys in the Office of Legal Counsel regarding the lawfulness of certain interrogation techniques. Last week, we provided to the Committee a series of documents on this matter in response to the Chairman s request. While the nature of the documents we provided was extraordinary, we concluded that their disclosure was necessary for the Committee Chairman LEAHY. Mr. Grindler, I would note that everybody who is here is a guest. Holding up Mr. GRINDLER. I am sorry? Chairman LEAHY. This has nothing to do with you. I would just note that everybody in this room is a guest. Holding up signs, whether I agree or disagree with the message, which also blocks people who are also guests here from seeing, is not acceptable. I have had an ironclad rule on that ever since I became Chairman of this Committee. I appreciate everybody s opportunity to be here. I appreciate everybody s opportunity to make statements that they might want to. But we will not interfere with everybody in here having an opportunity to hear you. I am referring to somebody behind you, Mr. Grindler. Please go ahead. Mr. GRINDLER. Thank you. While the nature of the documents we provided was extraordinary, we concluded that their disclosure was necessary for the Committee to fully understand the ultimate decision in this matter. The legal complexity of the issues and our interest in assuring fairness to all of the individuals involved further supported our view that you should receive the requested documents that we might not otherwise disclose outside of the Department. Although some may disagree with the Department s conclusions, we are confident that the Department followed an appropriate process in reviewing the OPR results and reaching a final resolution of this matter. The OPR report was completed on July 29, In keeping with our current practice regarding cases of alleged professional misconduct, the subjects of the report were given the chance to appeal the adverse findings contained in that report to Associate Deputy Attorney General David Margolis. Mr. Margolis decided this matter without interference from the Attorney General, the Deputy Attorney General, or other Department officials, and his decision represents the Department s final action. It has long been the policy of the Justice Department that career attorneys in the Office of Professional Responsibility should investigate and review allegations of attorney misconduct and that a career official should review any appeal of OPR findings of professional misconduct with respect to former Department employees. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

17 13 It is my understanding that no Attorney General or Deputy Attorney General has ever overturned the conclusion of the career official in such circumstances. As some of you are aware and I think some mention has been made of this already this morning Mr. Margolis has been deciding such matters for the Department for many years now. He brings to that task almost 45 years of Department experience, first as an Assistant United States Attorney, a strike force attorney, chief of the Organized Crime Strike Force, and for the last 17 years or so Associate Deputy Attorney General, during which time he also served as Acting Deputy Attorney General for a 5-week period in February and March of His lengthy service as a career attorney who has served administrations of both parties makes Mr. Margolis uniquely qualified to decide matters of this sensitivity on the merits, without fear or favor. My primary role today is to answer questions about the process that led to the Department s final adjudication of this matter, and I hope you will understand that I am not in a position to delve deeply into the substance of the reports. Both OPR and Mr. Margolis reached their conclusions independently and without political influence. That is how it should be. I believe that each of them fulfilled their responsibilities in this matter through significant good-faith efforts, which I am not prepared to second-guess. The process that began with OPR s investigation culminated in Mr. Margolis decision. The Department stands behind that decision, including the decision not to refer the matter to the bar associations where Mr. Bybee and Mr. Yoo are members. Any effort on my part to summarize or paraphrase the reasoning of OPR or Mr. Margolis would simply run the risk of misrepresenting a record that speaks for itself and is now available for all to review. There is one common thread among the documents we provided to the Committee. They reflect a shared conclusion that the OLC memoranda were flawed. Judges Mukasey and Filip also wrote that the memoranda contained multiple, material errors. The disagreement among the reviewers is whether the legal work at issue here was so flawed as to amount to professional misconduct. This is a difficult question, and in the end, Mr. Margolis concluded that the authors of the memos exercised poor judgment, which in the context of an OPR investigation means that they chose a course of action that represents a marked contrast to the action that the Department may reasonably expect an attorney exercising good judgment to take. The Attorney General and I have great faith in Mr. Margolis and in the process that led to his decision in this matter. At the same time, the Attorney General continues to have confidence in OPR s ability to investigate allegations of professional misconduct against Department attorneys. Under new leadership since last year, OPR is working to resolve cases more quickly and has been allocated additional resources to meet the demands of a workload that has grown substantially. The Department fully supports OPR s mission, and I have committed myself during my tenure as acting Deputy Attorney General to work with OPR to make improvements in their investigative and review process. I hope this initial information is helpful, and I am happy to respond to your questions. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

18 14 [The prepared statement of Mr. Grindler appears as a submission for the record.] Chairman LEAHY. Thank you, and I do have many questions. One of the things that bothered me, should bother a lot of Americans and I know it does is we talk about the reputation of John Yoo and Patrick Philbin, for example, but now we find that the Department of Justice records of both Mr. Yoo and Mr. Philbin have apparently been destroyed. They were not made available to OPR investigators. In just a footnote to the report, OPR states that investigators were told that most of Mr. Yoo s records had been deleted and were not recoverable, that Mr. Philbin s records from the crucial period July 2002 through August 2002, the time the Bybee memo was completed, had also disappeared and are not recoverable. Now, it raises very serious concerns about Government transparency and whether the Office of Professional Responsibility had access to all the information relevant to the inquiries. As you know, the U.S. Code is very, very clear about these records have to be retained. In fact, it has penalties provided by law for the removal or destruction of these records. Now, as does the Congress, the American people have a right to know, but we also have a right to know why these critical records were deleted. Why were they kept from the Federal investigators? Has the Department opened an investigation into the circumstances surrounding the destruction of the s? Mr. GRINDLER. Chairman Leahy, first, the report itself does not suggest that there was anything nefarious about Chairman LEAHY. That is not my question. The fact is that the law requires them to be retained. They were not retained. Has there been any investigation into why they were not retained? Mr. GRINDLER. I am not aware of any Chairman LEAHY. I do not care whether it is nefarious or not. I just want to know the facts. Mr. GRINDLER. Chairman Leahy, what I have done is I have met with the Assistant Attorney General for Administration for the Department of Justice who has oversight of the administrative operations of the Department, which include information technology systems. And I have directed him to work with his experts in information technology to determine what exactly was going on in terms of the archiving of these s. Chairman LEAHY. Will they make an effort to retrieve them? Mr. GRINDLER. Well, I first have to find out what the facts are with respect to the s. If they are retrievable, I will direct him to retrieve them. That is the part I do not know yet. Chairman LEAHY. I recall when millions of s mysteriously disappeared during the Bush administration, and I had publicly said, well, that is you know, they do not just disappear, they must be there. And I recall them sending their press secretary, Ms. Perino, out to say, What is he, some kind of an IT expert? I mean, that is foolish. They have been deleted. They have disappeared. We all know they have disappeared. Why would anybody suggest otherwise? And then we found the 22 million s that, of course, had disappeared, well, they had not, they were there. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

19 15 The Federal criminal statutes, 18 U.S.C. Section 641 and 18 U.S.C. Section 2071 prohibit the destruction of these Federal records. And I appreciate what you are saying, you do not what the facts are. Have they disappeared? If they have and if they have been destroyed, either the Yoo s or the Philbin s, will the Department make also a determination whether the destruction was criminal? Violation of the criminal statutes would seem fairly clear. Mr. GRINDLER. Chairman Leahy, what I would like to do, I first want to get the information back from the information technology experts, including all of the questions of what occurred, what the policies are, and what the archive system is. And at that point, I will be in a position to evaluate whether anything additional needs to be done. I would point out in addition, though, that the report does include a review of some of Mr. Yoo s s. I understand, for example and it makes reference to them that s within the Department that he sent or may have received would then to some extent be contained in other people s boxes. All I am saying is that the report does not have a complete lack of his s, that as soon as I learn the facts regarding this, I will provide appropriate information back to this Committee. Chairman LEAHY. It is interesting because, you know, during the firing of the U.S. Attorneys, something everybody now agrees was an egregious mistake, when we looked into it, there were a number of s by Mr. Karl Rove and others in the White House that were missing. Now, 2 months ago, we finally find those s of course, after the investigation was over and after the time when the U.S. Attorneys might have been reinstated. Now, I hope we do not have to wait that long this time, and I would hope that what you find you will report to this Committee, report to me and to Senator Sessions what you find. We also found that there is a pattern where the political operatives were using a second BlackBerry or nongovernmental e- mails to circumvent the Federal requirements of keeping Federal records. Will the Justice Department determine whether Mr. Yoo used a second BlackBerry or any other kind of system, nongovernmental s, to communicate with Mr. Addington and others from the White House? Will you determine that? Mr. GRINDLER. I will pose that question, Senator Leahy. Chairman LEAHY. And will you give us the answer? Mr. GRINDLER. Yes, Senator. Chairman LEAHY. I mean, we all know the famous Shakespeare, Hotspur, I can call them from the frothy depths, the response, of course, being, Well, so can I, so can anybody. But will they come when you summon them? I want to know. I mean, I am trying to fulfill this Committee s oversight. We have made oral requests and written letters. We have held hearings. We have subpoenaed documents to get to the bottom of what happened. And, in fact, I have submitted for the record a number of letters dated from 2002 to 2007 detailing my correspondence, my requests to OLC to get this information. We were always told that the information was not there, we could not get it. We would then eventually get a lot of it in the VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

20 16 newspapers after it had been leaked by people within the administration, within the Bush administration, and to the press. For example, on October 16, 2008, I issued a subpoena for all documents relating to the Office of Legal Counsel starting from September 11, 2001, concerning the administration s national security practices and policies related to interrogation and detention. I also subpoenaed the relevant index. It was not until the end of the last administration we were shown a few of the opinions, and then they were heavily redacted. Attorney General Holder released some of these memoranda on March 2, 2009, more on April 16, But after all this time, I still want to know whether we have seen all the relevant legal documents. So I pressed the Department last year under the new administration for a complete index of the memoranda. I received a letter last year, June 16th, that they are working to produce the index. The President issued an Executive order on January 22nd of last year prohibiting the use of any interrogation technique not authorized by the Army Field Manual. An Executive order, of course, can be overturned. So my question is this and I will certainly give extra time to Senator Sessions has every OLC memorandum that is cited in the OPR final report been withdrawn? Mr. GRINDLER. Senator Leahy, first, with reference to the Executive order, the President in January of 2009 himself directed that none of the OLC opinions post-9/11 that related to interrogation techniques should be relied upon. I can confirm to you that seven of the eight OLC opinions referenced in the OPR report have, in fact, been formally withdrawn. The eighth OLC opinion is covered by the Executive order, and there has not been an occasion otherwise to formally withdraw it because it actually is a memorandum that refutes or modifies some of the seven other OLC opinions. But in any event, the Executive order makes clear that none of these opinions can be relied upon. Chairman LEAHY. No other outstanding letters or opinions? Mr. GRINDLER. Not that I know of, Senator. Chairman LEAHY. The DOJ website now makes available to the public a number of withdrawn OLC opinions. Is that the full set? Mr. GRINDLER. Senator, let me communicate with OLC and get you a definitive answer on that. Chairman LEAHY. And my staff will make sure to fully define that question. Has the Judiciary Committee been provided access to all OLC documents related to the Bush administration s interrogation and detention of individuals after September 11th? Mr. GRINDLER. Again, I am going to have to go back and get definitive confirmation. Chairman LEAHY. And if we have not, will you tell us when we will have it? I do not want to have to subpoena this again, but I will. Mr. GRINDLER. Yes, Senator. Chairman LEAHY. And that includes the index of all OLC opinions. And if it helps you when you go back to ask that, assure them I will issue a subpoena for the index if I do not have it. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

21 17 Mr. GRINDLER. I know, Senator, that they are working on an index, and I will communicate with them about that also. Chairman LEAHY. Thank you very much. Mr. GRINDLER. You are welcome. Chairman LEAHY. Senator Sessions, I appreciate your courtesy in waiting. Senator SESSIONS. Thank you. Mr. Grindler, Senator Durbin continues to repeat a party-line view that, post-9/11, these unlawful combatants were to be tried in civilian court, and then takes cases such as those that involve financing of terrorism and things of that nature to add them up to a total of 190 cases. I would just remind you that President Bush created a courtroom and a procedure to try cases in Guantanamo, which Attorney General Holder has said is legal, constitutional, and not in violation of our treaties. In fact, the only reason the Obama Administration chose not to do it was because the Attorney General thought as a policy decision it is better to use Federal court, which I steadfastly disagree with. So those cases were set up to be tried there. The Attorney General has issued an opinion that the presumption is that people held at Guantanamo will be tried in civilian courts and not in those courtrooms set up in Guantanamo, even thourgh Congress acted over the last several years to pass legislation that responded to Supreme Court criticisms of trying cases in military commissions. They refined the military commissions, as has the Department of Defense refined the military commissions. They now fully, I believe, comply with any treaty, Constitution, or legal or court objection. So this is to me a pretty clear question. The President said explicitly that he did not believe these individuals should be given Miranda warnings. He said that publicly, I think, in the 60 Minutes interview. And yet when you try these cases in Federal court, isn t it true when you arrest anybody and make them a prisoner of the United States, and you desire to ask them questions and they are in custody, that they have to be given their Miranda rights? Mr. GRINDLER. The policy that was referred to earlier, which is the FBI policy, does say that when you have someone in custody in the United States, you are required to give Miranda warnings. There are some exceptions or at least one exception to that policy that I think was utilized in the case of Abdulmutallab in Detroit, because when he initially was taken off the plane, he was questioned without being provided Miranda warnings. There is what is called a public safety exception in order to immediately determine whether there are other facts that need to be known to protect the safety of individuals at that point in time. Now, it is true later on he was given Miranda warnings. There are also in the United States procedures that require that individuals in this context be brought before a Federal court for an arraignment within a certain period of time, and there are also rules relating to how you view interrogations that continue after 6 hours of detention. So these are all rules that have to be or decisions that have to be made sort of on the split second. Senator SESSIONS. Well, I just would say to you that, yes, you can ask them, for instances Do you have a gun or anything on VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

22 18 you?, and those interrogations, in most cases that I have seen, can extend only a few minutes. But perhaps in this case it was so unusual, maybe you could go 50 minutes. But the net result is when you appoint them a lawyer and you tell a suspect that they have a right to remain silent, that usually, in my experience, increases the likelihood that the suspect will quit answering questions and will clam up. The fact is that you could take them to a military commission. The Christmas Day bomber, who flew from an al Qaeda center with an al Qaeda bomb to the United States al Qaeda being at war with the United States clearly met those standards of a military combatant. And just because you take a suspect into military custody does not mean you use enhanced techniques. But you do not have to do the kind of warning of rights, the right to a speedy trial, the right to discover, and the right to have an attorney paid for by the Government, because they are unlawful enemy combatants. They do not have those rights any more than a German or Japanese prisoner captured on the battlefield is entitled to a lawyer, entitled to be told he does not have to answer questions if they are posed to him. That is just a matter that we have been arguing over for some time. I should not have spent so much time on it, but it continues to me to be a serious matter. With regard to OPR, I am troubled by the leaks that came out of that investigation, and that the whole process really has done some long-term damage to the credibility of OPR, in my opinion. Based on my staff s assessment of the recent annual reports of OPR, it seems that a primary focus of their attention is on leaks. Throughout the whole Department of Justice, if there is an allegation of a leak, OPR will investigate it because leaks violate the discipline, order, and really the sanctity of justice in America. Mr. Grindler, let us say that an improper leak occurred in a Justice Department matter. OPR would be the one that would investigate that. Is that correct, normally? Mr. GRINDLER. They would be involved in the investigation. Sometimes if there is a reason to believe that the leak may involve a criminal violation, it may be that a U.S. Attorney s Office might be brought into it, or we have had circumstances in which Senator SESSIONS. Well, I understand, but they even have a rapid response team to deal with that, which is a healthy thing. Now I want to turn to the investigation at issue here. My understanding is that OPR s own policies and procedures state that OPR s finding their own findings may be publicly disclosed only when an investigation is final and after all available administrative reviews have been completed. Despite this, the investigation into the Bybee and Yoo memos was riddled with leaks. For example, in February of 2009, Newsweek reported that one of their intrepid investigators had obtained a copy of the draft nonpublic OPR report. It ran a story on it which cited two knowledgeable sources who asked not to be identified discussing sensitive matters, and that was before Mr. Bybee and Mr. Yoo were given a chance to even look at the report and respond. According to Yoo, he got an from this author of the story who asserted that, Marshall Jarrett s folks in other words, the VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

23 19 OPR attorneys who were unhappy with Attorney General Mukasey s refusal to endorse their conclusions. Soon after, a liberal blogger released previously unreported details about the investigations which he called important inside information of a still classified report. In May of 2009, an Associated Press writer reported about the draft from an internal Justice inquiry, and the New York Times published an article that described the report. Later in May, another blogger wrote about the then-current rumors concerning OPR and their report, saying, A source in the Justice Department would not give me any more details about the forthcoming report, but confirmed that what has been reported about it in the media so far is accurate. So I think it is clear that somebody was leaking, contrary to OPR s own policies and procedures. Would you agree that those facts show that improper leaks occurred? Mr. GRINDLER. Senator, it appears from the articles that information that should not be public was made public. The Attorney General and I both abhor the situation with leaks. It is a problem that the Department of Justice has faced, but it is a common problem that agencies across the Government have had to face. They are difficult cases. I can assure you that I take it very seriously, and, again, in my tenure as Acting Deputy Attorney General, when there are leaks, I will address whether or not further inquiries or investigations need to be Senator SESSIONS. Was there any use of OPR s powers and rapid response team to immediately respond to these leaks and find out how they were occurring? Mr. GRINDLER. Senator, I am not aware of what has taken place in that regard up until the point until now when I Senator SESSIONS. Has any investigation to date been undertaken to determine how these egregious leaks against policies and procedures of the Department occurred? Mr. GRINDLER. I do not know, and, of course Senator SESSIONS. Well, I can tell you if it occurred in a normal criminal case in a United States Attorney s Office anywhere in America in a serious case like this, a direct violation of the policies, OPR would investigate that, would they not? Mr. GRINDLER. I cannot really respond without knowing the exact circumstances, but I would tell you if there is Senator SESSIONS. Surely you would investigate a serious allegation of a leak in Milwaukee or Dallas, Texas. Mr. GRINDLER. If there is a serious allegation of a leak, I can assure you that I will take it very seriously, yes. Senator SESSIONS. Well, it should be investigated, and if it came from OPR, should it not be investigated or should it be investigated? Mr. GRINDLER. It really does not matter what the source was if it is an improper leak. Senator SESSIONS. I agree with that. It appears it was not investigated, and it appears the leak came from OPR itself. Mr. Margolis wrote a memo to Attorney General Holder, I remember him as being one of the more respected members of the VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

24 20 Department of Justice when I was in it, and he came to the Department, maybe in the early 1970s, with long hair and all of that you know, there was a discussion about Mr. Margolis. He was such an independent thinker. But everybody grew to respect him more and more over the years, so I have a lot of respect for him, just as so many people who have served in the Department do. He noted that the OPR report made a departure from standard practice and without explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without application of OPR s own standard analytical framework. He goes on to express concerns saying that the framework has applied virtually without exception in the 17 years he had been tasked with resolving attorneys challenges to OPR s findings. During the course of this investigation, was there any rule in place, either in OPR or in DOJ practices and procedures, that called for OPR to disregard its own standard analytical framework in cases that dealt with attorneys in the Office of Legal Counsel? Mr. GRINDLER. I am not aware of any rule such as that, Senator. Senator SESSIONS. One of Mr. Margolis primary objections to the final OPR report was that it relied on a standard that was neither known nor unambiguous. In fact, OPR created a completely new standard, it seems to me, from different sources, several of which did not exist at the time the memos in question were written. Do you think it appropriate to judge an attorney s actions by a standard created after the action was taken? Mr. GRINDLER. Senator, I think that David Margolis commentary with respect to the first two drafts pointed out the issue that you are raising, and as a result of further discussion, that issue was resolved in terms of how the final report was approached. Senator SESSIONS. I think that was an important step. These are difficult challenges that you face. OPR is not an entity that ought to be second-guessing the very important office of the Office of Legal Counsel or the Solicitor General on matters dealing with serious constitutional questions. I do not want to say they are pedestrian, but they are at a different level of legal analysis than these people who are required to do that. And the Dawn Johnsen confirmation matter is one that caused a great deal of concern because the Office of Legal Counsel really is an important office. It requires the ability to analytically consider important issues with the highest legal skill. So that is one of our concerns and it is always important that OLC be filled with the best people. And as you can see, when disagreements arise over OLC s opinions, we can have quite a stir. Thank you. Chairman LEAHY. Mr. Grindler, we have quite a stir on making sure that the United States follows its own high standards and laws. The Office of Legal Counsel is one that has served very well for both Republican and Democratic administrations when the people who are the professionals and nonpartisan professionals are allowed to operate. When they have indirection or direction of a political nature and respond to that, then the Department of Justice is VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

25 21 badly damaged. The Department of Justice has to make determinations outside of politics. I recall when I was interviewed as a young law student by the then-attorney General, asking me if I would come to work for the Department of Justice, I had asked him, How much political influence would there be in the Department of Justice in criminal matters, civil rights matters, whatever? He said, I have told the President personally neither he nor anybody on his staff can interfere with what we are doing on prosecutions. That Attorney General, incidentally, was Robert Kennedy, and he subsequently prosecuted somebody who was vitally important to his brother s election as President. We found during the last administration, what raised my concern, that we had several hundred people in the White House who were allowed to get involved in prosecution matters. That is not the way this should operate. It should not operate that way in any administration. I think of handling terrorists, when President Reagan used the FBI to set a trap for a terrorist overseas, used their interrogation procedure, brought him back and convicted him. We have seen Zazi, who was convicted just in the last few days in New York. Both the Bush administration and the Obama administration have been pretty effective in prosecuting people who we have followed their rights, we have gotten a great deal of information from them, and we have also been able to demonstrate to the rest of the world that we follow the rules. That is why when we do not, it is a bad mark. As Senator Durbin indicated, we have these rules because we also want to be able to tell the rest of the world, if you capture one of our people and we know some will not follow the rules, but we want to be able to have the high moral ground. We do not want to be in a case where we can be lectured on human rights by countries that do not follow it. Senator SESSIONS. Mr. Chairman, I have a very important appointment. I am going to ask to leave. Thank you for your leadership. I will leave this Washington Post editorial on the report by Mr. Margolis, and, Deputy Attorney General, congratulations on your service. You have got a tough job, but it is an important job. Use good judgment, keep a cool head, and do right. And I agree with the Chairman completely that you have got to make these decisions based on the law and the facts, and we cannot allow politics to infect the Justice Department. Thank you. Mr. GRINDLER. Thank you, Senator. Chairman LEAHY. Thank you, Senator Sessions, and we will keep the record open until the end of the day for statements by Senators or memos. In fact, I would ask that any questions that are submitted be answered by this time next week. Let me ask you this: The Bybee and Yoo OLC memos argued that the commander-in-chief authority is so broad that in a time of war, even an undeclared war or stating that we are at war because terrorists want to attack us, and I assume that they always will in my lifetime the President could take any action in the name of national security, and that action would be lawful. In an interview with OPR, Mr. Yoo answered affirmatively when asked if the President could order a village of resistance to be massacred. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

26 22 Mr. Yoo said such an order would fall within the commander-inchief s power over tactical decisions. Can you imagine how we would react if we heard the head of another country s government make such an order? There would be total outrage expressed by people from the right to the left in this country. So let me ask you: What is the current OLC interpretation of the commander-in-chief authority? Has OLC articulated a formal interpretation since the Obama administration took office? Mr. GRINDLER. Senator, if you are talking in terms of interrogation authority is that the question? Chairman LEAHY. No. I am talking about what is the commander-in-chief authority. Is it basically, as Mr. Yoo seems to indicate, virtually without bounds because we know that we will face and probably will always continue to face attacks by terrorists against the United States. Mr. GRINDLER. I believe that some of the memoranda prepared by Mr. Yoo and Mr. Bybee did, as you pointed out, address what the President s power may be in certain circumstances. I am not aware of OLC having rendered any opinions since the President had indicated that the opinions post-9/11 were no longer to be relied upon. But to give you a definitive view, I will go back to OLC and provide that information to you. But I am not aware that they have issued any opinions since President Obama came into office. Chairman LEAHY. Well, the reason I ask this, in January 2008, then-attorney General Michael Mukasey sent a letter to this Committee, and he said that waterboarding might be reintroduced under the defined process by which any new method is proposed for authorization in the CIA s interrogation program. It is sort of a complicated way of saying that if the CIA or the White House asked again, well, then, the Department of Justice might find waterboarding to be legal. The Obama administration, as you said, issued an Executive order limiting intelligence techniques to the Army Field Manual. They did that on January 22nd of last year, which basically outlaws waterboarding because the Army Field Manual does. But this administration at the most will hold office for 7 more years, either 3 more years or 7 more years. But some prominent Republicans, including candidates for executive office, have outright endorsed waterboarding or they refuse to condemn it. So that other than that January 22nd Executive order, is there any authority in force today to prevent either this administration from changing its mind or a subsequent administration from approving waterboarding is a legal interrogation technique? Notwithstanding the fact that we have in the past prosecuted people who abused waterboarding. Mr. GRINDLER. Senator, again, the President of the United States has made clear that torture will not be condoned and that any interrogation must be consistent with the Army Field Manual. Again, with respect to OLC, which does have the responsibility as delegated to them by the Attorney General to provide advice to the President on legal matters, I am not aware that they have issued another opinion since this President came into office on interrogation or even the broader powers of the President in these VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

27 23 circumstances. I will confirm that, but I think that is about all I could say right now. Chairman LEAHY. Do you know anything offhand in the law that would stop a subsequent President from just saying we are no longer following that Executive order? Mr. GRINDLER. Well, I mean, as long as this Executive order is in place, that would be in the first instance something that would prevent it. Again, with questions of this magnitude, one would hope in the future if a President considered any modification of that, that they would go back to the Office of Legal Counsel and seek an opinion. Chairman LEAHY. We have talked about the OLC being sort of the gold standard. It stays out of politics. People respect it and I know they do not just within the White House, but with obviously other departments. The Department of Commerce, the Department of Transportation may ask for an OLC memo, and it usually has virtually the power of law where that Department comes down. But we find when Mr. Bybee and Mr. Yoo worked at the OLC that the White House involvement with what they did was extraordinary. The then-white House Counsel, Alberto Gonzales, marked up their draft memos. Mr. Gonzales described David Addington, then-counsel to Vice President Cheney, as an active player in the draft of the first so-called torture memo. Former Deputy Attorney General James Comey told OPR there was significant pressure on OLC from the White House, particularly Vice President Cheney and his staff. He then added and this was rather chilling You would have to be an idiot to not know what they wanted. Former Deputy Attorney General Comey said that the Justice Department leadership believed the acting head of OLC, Daniel Levin, was forced out because he had not delivered on what the White House wanted in interrogation. I mentioned my conversation with Robert Kennedy when I was a law student. Obviously, as a young law student I think I was 23 at the time. It was a few months before I was going to graduate from Georgetown. You can imagine how awestruck I was just to be in no matter who was Attorney General, to be in the office. But to hear him say so emphatically that he had to be independent, when I became a prosecutor, State s Attorney in Vermont, I never forgot that. And I would get calls from in fact, once from my predecessor here in the U.S. Senate and basically hung up the phone on him because he wanted to talk about a friend who had been picked up and what might be done. And I told the Governor s office that they could not that I would have to make that decision. If I made a bad legal decision, the courts would overturn it. Now, you are a career prosecutor. You are a long-time employee of the Department. You had been a career prosecutor. Is it common in your experience for the White House to be so intimately involved in the drafting of an OLC opinion? Mr. GRINDLER. In my experience as a prosecutor, I was a line prosecutor so I did not have any contact with the White House at that time. However, when the President of the United States asks for legal advice, that is one of the responsibilities of OLC. I believe, though, that VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

28 24 Chairman LEAHY. What if he says, I want legal advice to tell me that I can do such-and-so, no matter what the law is? Mr. GRINDLER. No, I think that the question must be: These are the actions we propose to take. Are they lawful? And then, yes, you get into play the integrity of the lawyers at the Office of Legal Counsel, and there is a long history there. And lawyers want to be in that office in part because of the independence and integrity that they have demonstrated historically. And I do think that that continues based on my contact with the Office of Legal Counsel since I have been Acting Deputy Attorney General. In fact, I meet with a representative of OLC, the head of it, at least once a week if I can. But I do think that there are things in place that help ensure the integrity of the Office of Legal Counsel. For example, they do communicate with White House Counsel, but there are regular meetings in which the Attorney General and the Deputy Attorney General are also present. So they are there because it is as a result of the delegation of authority from the Attorney General to the Office of Legal Counsel that they are able to fulfill this responsibility. Also, what the office does is they have a robust system of soliciting views from agencies that are interested parties in their legal analysis, and that helps because it brings to bear to their analysis the analysis of a variety of parties. And I think that process is part of what will help to ensure the integrity of those decisions. At the end of the day, you have to have people with integrity, people that are strong, to be able to render these difficult opinions. But I think that that is what is going on in the Office of Legal Counsel today. Chairman LEAHY. But you would agree with me, whether it is President Obama or President Clinton or President Bush, no matter who is the President, OLC has to be independent or they lose actually, they lose the ability to give the President good advice. Mr. GRINDLER. I totally agree they have to be independent, but they also have to listen to the views of the interested agencies and the President. Chairman LEAHY. Oh, I understand. Yes, I understand that, but not to the point of having somebody dictate a result which may be different than their own legal conclusions. Mr. GRINDLER. Absolutely. At the end of the day, they have to come to the decision that they think is right. Chairman LEAHY. In his review of the OPR final report, Mr. Margolis describes a group that was reviewing the OLC memos as a limited and sophisticated audience, suggesting the players involved would have been aware that Mr. Yoo s assessment of the commander-in-chief authority represented the most aggressive view on the topic. I have a hard time buying that, and I will tell you why. Even White House Counsels are not experts on every single area of the law, which is why you have an Office of Legal Counsel. Then-White House Attorney General Gonzales was not an expert in every field of the law. This attorney was not an expert in the laws of war or the commander-in-chief authority in a case of war because they normally are not, and remember these attitudes and questions being asked were different after 9/11 than before. VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

29 25 Now, Mr. Addington, who was Vice President Cheney s counsel, was well known from his prior work and his writing to have views on a very expansive Executive power. They are very similar to Mr. Yoo s. Now, I feel that as OLC clients, both Mr. Gonzales and Mr. Addington would have been better served by being given a complete picture of the relevant facts and the law, especially as the Yoo memo went beyond anything OLC had previously said. I also think the Nation would have been better served if there had been an impartial account to the law. It almost comes across like something in a political campaign: what do we do to win, not what do we do to obey the law. Was it poor lawyering, poor action as a lawyer by Mr. Yoo that would present a one-sided articulation, what even Mr. Margolis called the most aggressive interpretation of the commander-in-chief powers? Mr. GRINDLER. Mr. Margolis did conclude that the analysis was flawed. He also concluded that it was a close question as to Mr. Yoo s intent. Chairman LEAHY. Well, I worry about some of the things that I I have a great deal of respect for OPR. I have had a great deal of respect for it in Republican administrations and Democratic administrations, and I have relied a lot of times in determining how I might vote on issues not that I ask them for an opinion, but I have looked at some of their opinions on what the law is with regards other departments, what it is as regards the powers of the Executive, and I have looked at a lot of those, but I have made my own decisions as to how I might vote on an issue coming up, because I think of them as being the facts and the law objectively stated, as it should be. I would think any President would want that and would be better served. Now, the OPR report does not find the former acting head of OLC Steven Bradbury to have violated any technical ethic standard, but I see his complicity in offering flimsy legal advice to justify the White House actions. In May of 2005, Mr. Bradbury wrote two memos to reaffirm the use of waterboarding. This was after the socalled torture memo had been leaked to the public and then withdrawn by the Bush administration. Still, Mr. Bradbury disregarded the concerns of senior Department officials, like former Deputy Attorney General James Comey, who said that one of Bradbury s memos would come back to haunt the Department of Justice. Mr. Comey also said that the Attorney General, who is now Alberto Gonzales, was under great pressure from the Vice President to issue these memos. And Mr. Comey was concerned that Mr. Bradbury, who was in an acting capacity as head of OLC but was known to want the official job, would be susceptible to just that kind of pressure. Now, on May 11th of last year, Attorney General Holder issued a memorandum from the Department of Justice setting up a process for all requests for legal advice from the White House. It said the Assistant Attorney General for the Office of Legal Counsel should report to the Attorney General and the Deputy Attorney General any communications that in his or her view constitute im- VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

30 26 proper attempts to influence the Office of Legal Counsel s legal opinion. I think that is a good start. But I would urge you, if you have thoughts on this, to pass them on to me, what further steps the Justice Department can make to protect us, because the OLC is extremely important to us. It is extremely important no matter who is President. It is extremely important to the country. Are there further things that we can do to make sure its integrity is preserved, whether in this administration or future administrations? Mr. GRINDLER. Well, I do think that it starts with the leadership of the Department, the Attorney General and the Deputy Attorney General making clear not just to the head of OLC but the other lawyers working there that their role must be an independent role, and what you have already articulated, that if they ever perceive or feel like there is any effort to improperly influence that decisionmaking, that they need to take it to the Deputy Attorney General or the Attorney General. And it would be incumbent upon them to interact with the White House, or if it is coming from another government agency, whatever it may be, to interact with the head of those agencies in order to address that problem. Chairman LEAHY. Thank you. My staff has reminded me I said I have great respect for OPR opinions. Obviously, I meant OLC. That is what we were discussing at the time. Mr. GRINDLER. Right. Chairman LEAHY. Well, Mr. Grindler, I thank you for taking the time. There probably will be some follow-up questions, and I appreciate your being here. This may seem arcane to some, this discussion. I just feel very strongly about the integrity of the Department of Justice. You have, as you know, some amazingly talented and dedicated men and women in the Department of Justice. I have known so many I have worked with over the years. I have no idea what their politics are. I do not really care. They are just extremely good. Just like we see in our prosecutors offices around the country some remarkable men and women who at great sacrifice serve this Nation. And they serve the Nation because it is a higher calling. This is a great Nation. The Department of Justice is a great institution. If it had not been for the tugs I felt from my native State of Vermont, I would have accepted the invite from Attorney General Kennedy. I do not know what life would have been otherwise, but I just wanted to get back home to Vermont. But I have never forgotten that. I have never forgotten what was driven into me by my law school professors, many no longer with us, who said about how the Department of Justice has to have integrity, has to be independent. I see you in that mode, Mr. Grindler, and I mean that as a compliment to you, sir. And we have to maintain it. Otherwise, how are you going to attract these remarkable men and women who serve there day in and day out? Mr. GRINDLER. I agree with you, Senator. Chairman LEAHY. Thank you. Mr. GRINDLER. Thank you. Chairman LEAHY. We will stand in recess. [Whereupon, at 11:50 a.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.] VerDate Nov :10 Jan 13, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\63193.TXT SJUD1 PsN: CMORC

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